Monday, September 14, 2009

It does not seem that anyone else in the Anglican/Episcopalian blogosphere is saying it, so I might as well be the one to point out a few inconvenient facts.

Much cyberink is being spilt on whether the Episcopal Church (USA) should "sign on" to the proposed Anglican Covenant. An equal, if not greater, amount is devoted to whether any Episcopal Dioceses in the Church could sign on to the Covenant separately.

First of all, let us be plain-spoken here. The Episcopal Church (USA) is a voluntary association of dioceses. The dioceses come together every three years through their elected bishops, clergy and lay deputies in a representative legislature called General Convention. It is the business of General Convention to (a) approve editions of and amendments to the Book of Common Prayer; (b) adopt Canons and Constitutional amendments for the Church as a whole; and (c) adopt non-binding statements of intent, called "Resolutions". The latter are not binding on anyone, because General Convention passes out of existence as soon as it has adopted them. There is no one to "enforce" the Resolutions even if they were to be worded with enforcement language (which they are not).

So let us be very, very clear: General Convention, through its resolutions, binds nobody -- not even the next General Convention. General Convention is likewise powerless to order a Diocese to do anything, as is the Presiding Bishop, as is the Executive Council -- you name it. No other part of the Episcopal Church (USA) can tell any one Diocese what to do.

(If you would like some practical proof of this point, consider the recent trial of Bishop Bennison of Pennsylvania. The Court for the Trial of a Bishop sought to have the Diocese of Los Angeles produce files in its possession relevant to Bishop Bennison's brother, whom the Bishop was accused of protecting. The Diocese point-blank refused to produce the documents. The Court was stymied, and admitted it was powerless to compel the Diocese to do so. [See page 3 of the linked Memorandum.] Had it been a secular court of law, it could have compelled the Diocese to produce them by serving a subpoena on its officers. If they had failed to comply, the court could jail them until they agreed to do so. No such sanction is available to any court within ECUSA.)

Now let us ask the simple question: suppose ECUSA, through General Convention, decides to approve the Anglican Covenant. By what mechanism could it do so?

By a Canon? No, because the Church Canons deal with ECUSA's internal polity, worship and discipline. They do not address ECUSA's relations with other churches in the Anglican Communion, except insofar as they touch upon matters of polity, worship or discipline in ECUSA.

By a Resolution? No, again, because (a) resolutions are non-binding on the Dioceses, and so no resolution by General Convention could compel a Diocese to accept any covenant contrary to its wishes; and (b) a resolution could be changed by any subsequent General Convention, so the "signature" of, say, General Convention 2012 on the Covenant could not bind General Convention 2015, or 2018, or 2021 . . . ad infinitum. All any such Resolution could express would be the mind of that particular General Convention that it was in favor of the Covenant, and as soon as the Convention dissolved and the bishops and deputies went their separate ways, matters would be back in the hands of the individual dioceses again.

Well, could General Convention pass a Resolution authorizing the Presiding Bishop to sign the Covenant on behalf of the whole Church? Of course; no one can stop General Convention from passing any damn fool resolution it wants to pass. But a resolution authorizing the Presiding Bishop to do anything binding for the whole Church would be beyond its authority, and hence meaningless.

The authority of the Presiding Bishop (or of General Convention) to do things on behalf of the whole Church comes from the Constitution. Thus, the Constitution would first have to be amended to authorize the Presiding Bishop to enter into any covenant or agreement on behalf of the whole Church. (For once, Father Mark Harris and I are in agreement on something, even if not in the particulars.) And such an amendment would have to be agreed upon by the individual dioceses, first in General Convention, then in their individual diocesan conventions, and then once again at the next General Convention.

Thus it really comes down to the collective dioceses. Unless they agree together in sufficient numbers over a four-year period, no Covenant can be signed on their behalf by any officer of the national Church. (Such a Constitutional amendment -- in each of the 38 provinces of the Communion -- happens to be the process suggested by the Windsor Report [par. 118]; see also the Preamble to the draft covenant attached to the Report. The language about "designated signatories" was dropped when the St. Andrews draft appeared, and the intent now seems to be to let each province decide best how to make the Covenant binding for itself.)

Given this reality, what would be the point of such a collective and drawn-out exercise, when the dioceses are fully competent to act already on their own? More to the point: why engage in such a drawn-out process, when the individual dioceses would have to act first on their own anyway, before the Church itself could act? Why not let each individual diocese give or withhold its consent to the Covenant, as it sees fit?

(That is a purely rhetorical question, of course. Under ECUSA's polity, no one has to "let" the dioceses do anything. They can do pretty much as they please, especially when it comes to the Covenant.)

Again, even if 99 out of 100 dioceses agreed to sign on, nothing the 99 could do collectively could compel the 100th diocese to sign on if it did not consent. They could go through the motions of authorizing a Constitutional amendment which empowered the Presiding Bishop to sign on behalf of the "whole Church", and yet that would be a fiction: if the 100th diocese refused to recognize (or follow) the Covenant, none of the other dioceses could do a thing about it.

These are simply the facts that follow from ECUSA's unique polity. Because of America's traditional distrust of royal and episcopal authority, ECUSA did not form with any bishop having metropolitan authority over the whole Church, and there is no metropolitan in ECUSA today -- despite the actions of the current Presiding Bishop (many of which, as this blog will never cease from pointing out for anyone to see, are uncanonical and illegal). And without a metropolitan, there is no way for the national Church to exercise any power over individual dioceses and their bishops.

An example again will illustrate what I mean. A significant number of diocesan bishops (including Georgia's bishop-elect) endorse open communion for all, regardless of whether a worshipper has been baptized or not. Such an endorsement violates Canon I.17.7 of the Church, which plainly states: "No unbaptized person shall be eligible to receive Holy Communion in this Church." Does the national Church try to do anything about this? It does not. Are the bishops who advocate open communion presented for their repeated canonical violations? They are not.

The simple fact on the ground is this: any diocese which did not want to sign on to the proposed Covenant could not be made to do so, and the Church has no mechanism in place either to compel, or to discipline, a recalcitrant diocese.

Thus I come back to my question: why are all these bytes being wasted on the blogs over the question whether ECUSA should sign on to the Covenant? It is the individual dioceses of ECUSA that will have to take steps in their own diocesan Conventions to ratify any such Covenant. And once they do so, any further action by the national Church, by General Convention or the Presiding Bishop, would be utterly superfluous (as well as entirely meaningless).

This is the plain consequence of ECUSA's unique polity -- as the people at 815 are so quick to remind everyone else. They should take a dose of their own medicine -- and the Dioceses should get on with the process of taking up the Covenant in their own Conventions. Forget about 2015, or even 2012 -- once the final draft of Section 4 is published, every Diocese in the Church could act by next December of 2010. There is no need whatsoever to wait beyond that.

7 comments:

I love your posts and your common sense attitude!! One thing a lot of people don't realize (and please correct me if I'm wrong) is that the PECUSA was formed in the likeness of our own U.S. gov't, as it was in the beginning. In that there was a small federal gov't (that being the House of Bishops & Deputies) and more powerful states (that being the diocese lead by the Bishop). As like our federal gov't has gone, so has gone 815 with more interest in a power grab. The ECUSA isn't like the Roman Catholic Church. His Holiness the Pope appoints each Bishop down to the local diocese. The PB ECUSA doesn't appoint any bishop to lead a diocese, unless I am mistaken, perhaps PB can if there is a unfilled vacancy??? Anyway, she doesn't appoint Diocean Bishops rather than are elected by the needing diocese. Therefore, how can she have any control over them? Corrrect me if I'm wrong, please.

D, you are correct that the Presiding Bishop has no power to fill a vacancy in the see of a Diocese, and in that respect she is unlike the Pope. Bishops of the Church may remove someone from their see, but only the clergy and laity of a given Diocese may fill the office of Bishop once it becomes vacant, as I pointed out in this earlier post.

The early history of PECUSA was more akin to the United States from the time that independence was declared until the Articles of Confederation were ratified, in 1781. Each State was sovereign and autonomous, and Continental Congress had no power to tell any State to do anything. That is why the Articles were drafted with a Supremacy Clause, and why the U. S. Constitution included an even stronger one. But PECUSA, and ECUSA following it, have never had a Supremacy Clause in their Constitution, even though its original drafters were some of the same people who worked on the Constitution of the United States. (See Mark McCall's paper, discussed in this post, for much more detail on this topic.)

As is often the case in discussions such as this, overstatement is a good rehetorical tool. However, it is not true that the GC cannot force a Diocese to do anything. Yes, there are many areas in which there is almost complete freedom for a Diocese, but there are areas where that freedom is constrained. A Bishop is not free to ordain someone without fulfilling the canonical requirements - although I have known Bishops who were willing to ignore the Canons when it suited their theology. A Diocese cannot elect a Bishop without complying with the Canons. Congregations and Dioceses are forced to have annual audits of their finances and to pay pension assessments for the clergy they employ. Congregations are required to submit Parochial Reports. This is by no means an exhaustive list of the areas in which the General Convention has decided to force Dioceses and congregations to do certain things.

Father Weir, I too do not wish to get bogged down in the details of differing with you (the Canons do not spell out how bishops are to be elected, for example, but leave that to the rules of each Diocese) -- which would detract from the main topic: how can ECUSA sign on to the proposed Covenant without first changing its Constitution? There is no authority in that document granted to General Convention or to anyone else to sign a covenant in the name of all the dioceses in the Church. And if the Church would have to go through the lengthy process of obtaining consent from each Diocese before the Constitution could be amended, then what is wrong with asking the Dioceses to consent to the Covenant individually to begin with?

Mr. Haley,I agree with Mark Harris's opinion that changes in the Constitutions of many of the churches would be required. There is, as you know, some doubt that the Church of England would be allowed by Parliament to adopt the Covenant. Your raise an important point, i.e., to what extent is GG able to commit ECUSA to anything beyond budgets and other matters that have to do with its own life. GC has certainly spelled out in some ways ECUSA's relationship to the Anglican Consultative Council and included in the Preface to the Constitution a statement of fact about ECUSA's membership in the Communion, but you are right that there may be some uncertainty about GC's authority in this matter.

Not to quibble too much, but there is only limited freedom granted Dioceses in the election of Bishops. Diocesan Canons govern the election itself, but the ECUSA Canons set some eligibility requirements for nominees and there remains the matter of consents.

I have no problem with Dioceses adopting resolutions in favor of adoption of the Covenant, but I still think it will be a matter for the General Convention to decide. If it were to be the decision of the ACC that adoption would be Diocese by Diocese, I might argue that that be the case throughout the Communion. Given the serious nature of the decision, I continue to pray that we will not rush to a decision one way of the other.

I don't see the issue about the property. Who owns the property is stated on the deed to the property. That would be the Corporation of the Episcopal Diocese of Ft. Worth, which the judge has just clarified as the one associated with +Iker. The charter of the Corporation says that it holds the property in trust for the parishes, so it is the parishes that ultimately own the property, even the rogue parishes that are doing the suing in this case. +Iker has maintained that he would settle amicably with those parishes.

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